NIRMA UNIVERSITY

INSTITUTE OF LAW

ARTICLE SUBMITTED FOR THE PARTIAL FULFILMENT OF THE FIVE YEARS

INTEGRATED DEGREE OF LAW HONOURS

ON
COMPARATIVE STUDY OF OFFICE OF PROFIT INDIA AND UK
IN THE COURSE OF

ELECTION LAW

UNDER THE GUIDANCE OF

Dr. Tarkesh Molia

SUBMITTED BY
ANSHUL VYAS (11BBL129)

B. COM. LL.B (Hons.)

SEMESTER X

OFFICE OF PROFIT IN INDIA AND ITS COMPARISON FROM U.K

Anshul Vyas (11bbl129)

The term Office of profit has not been defined any where, if we take Constitution of India or if
we take Representative of Peoples Act,1951. Its ambit has to be inferred only from
pronouncements of courts and other competent authorities, like the Election Commission and the
President.
OBJECTIVE
The object of this provision is to secure the independence of the MPs and MLAs. To prevent
them from being influenced or amenable to any favors and benefits, and avoid any temptations
which can be offered to them. Along with it one more basic objective was to keep all three
organs of government separate from actions and interferences and to keep a check and balance.
HISTORY
The concept of office of profit has been taken from Britain, where it was first applied in the
reforms of Morley Minto. At the time of framing of Constitution of India, Article 102 (1) and
Article 191(1) where brought keeping in mind the restrictions at Centre as well as State level.
These articles provide for disqualification provides for members of Parliament and Members of
State Legislative Assembly orderly.
INTERPRETATION OF OFFICE OF PROFIT
Article 102 which basically deals with disqualifications pertaining to MPs and MLAs clause (1)
of the same states as:If the person holding Office of profit under the government of India or of any State , but if
declared by Parliament not to disqualify the holder of office, that is if Parliament itself want to
include that particular office under the category of office of profit.
Elaborative aspect of this clause is, it disqualifies any MP who is holding any office which has
not been expressly declared by Parliament to be exception of office of profit. The other aspect is
office of profit need not to generate essentially pecuniary benefit, even if it is bestowing
administrative or executive power, it will not be barred from the category of office of profit.

Following pronouncements of Supreme Court , where office of profit has been interpreted:What is the definition of office:According to Lord Wright, A place which is in any way more of less of public character and
also certain duties are attached to it.
According to Earl Jowitt's Dictionary The place which empowers a person to take decisions for
others without their approval or prior permission.
The term profit in office of profit means:Ravabba Subanna vs. G. S. Kaggeerappa 1 The word 'profit' denotes the idea of gain which is
pecuniary in nature, but if the gain is there the amount or substantive aspect will not be of any
relevance.
Shivamurthy Swami vs. Agadi Sanganna Andanappa2, but at the same time the amount
received by person becomes material really, to indicate whether office really carries any profit.
In case of Shivamurthy Swami vs. Agadi Sanganna Andanappa 3, where the Supreme Court
laid down the test to determine the office of profit:1) whether the appointment has been made by Government;
(2) whether the right to dismiss or remove the holder is with Government;
(3) whether the remuneration is paid by Government;
(4) what is holder performing in nature of functions
(5) What is the nature and exercise of control of Government over those functions?

1 AIR1954 SC 653.
2 (1971)3 SCC 870.
3 (1971) 3 SCC 870.

M.Ramappa v. Sangappa and Ors.Supreme Court observed that "Patels and Shanbhogs who are
the holders of hereditary village offices governed by the Mysore Village Offices Act, 1908, they
were

Work was governed and supervised by the Government

Government is paying the remuneration or it is paid out of Government assets and funds

Removable by the Government

Held they were holding office of profit.

Maulana Abdul Shakur vs. Rikhab Chand and others 4, whether the Manager of School run by
Committee of Management formed under dargah khawaja sahib act, was held not office of profit,
since power of appointment , removal was not vested with government and salary of the person
has been paid out of the funds of dargah endowment.
Gurugovinda Basu v. Sankari Prasad5 another interesting question related to office of profit
arose, whether holding office of profit means service of government. It was held even if the
power of appointment, dismissal or the power to delegate or control or give directions as how the
duties are to be performed and the power to determine the amount and even the remuneration
criteria then also it will be termed as office of profit.
Now the next question arose was remuneration is in which form, determined by Supreme
Court in few of the cases which were in news
Shibhu Soren vs. Dayanand Sahay & Ors 6it was held by the Supreme Court that amount or
quantum of pecuniary gain is irrelevant, the substance matters and not the form in which
remuneration is paid is of least importance. In this case office hold by petitioner was at the
pleasure of State Government. He was the chairman of Interim Council and was receiving an
4 AIR1958 SC 52.
5AIR 1964 SC 254
6 AIR 2001 SC 2583.

honarium of 1750/- per month, and at the rate of rupees 150/- per month of daily allowance that
for the period which he spends outside the headquarters; Daily allowance at the rate of Rs.120/per day for attending meetings of the interim council; Furnished rent free accommodation
(quarters) and A car with Driver.
The factor which plays major role in the aspect of determination of the particular office is the
money which the person is receiving in relation to the office which he is holding and that amount
is very low in amount but the amount or the nature of amount cannot substantially effect the
decision of legislature as in the affected by the policy formulation of legislature influenced by the
Executive
In case of Jaya Bachan v. Union of India (UOI) and Ors7, In this case where the lady was
holding the post of chairman of Uttar Pradesh Film development Council which is termed as
Office of Profit by the petitioners because being Chairman of such Council where she has all the
powers to claim the facilities and allowances which the Office can offer to the chairman. The
major raised question was whether that she is receiving the amount or not of irrelevance but
whether the Office is able to generate all the facilities and in future also whether is she in
position to claim all those facilities. Whether she can sue the empowering authority or the
government to avail those allowances, The respondent raised the intention that she is not availing
any of those facilities and allowances they are merely decorative in nature. She is working in the
nature of honarium, wherein never claimed any seeked any of these facilities, where her bonafide
intention to not to obtain any benefit from the Interim council Board is proved.
But the Court considered the aspect of her entitlement that she can claim the money from the
Office and since that particular office is able to generate the profit. Hence she stands disqualified.
When Government undertakes any project and the activities which includes the activities of
commercial nature via corporations and the local bodies , which has some nature and exercise of
control on those corporations and they are also covered under the purview of State, is it
necessary to disqualify the person to hold the public office even if the person is not holding the
office but it is not excluded by Parliament from the purview of it then also he will stand
7 2006 (5) SCALE 511.

disqualified, As the government if has power to give directions to give work or if the
appointment or removal power is with government, then the control or extent of exercise of
power will determine the nature of office.
Sonia Gandhi Issue
President of Congress Ms Sonia Gandhi, who was Lok Sabha member also was appointed as
Chairperson of National Advisory Council by the Government of UPA, Several posts were hold
by her during the tenure of UPA Government Before initiation of any action against her, since
several complaints has been filed, she herself has resigned.
MEASURES TAKEN BY GOVERNMENT
ince the disqualification criteria have been adjudged by the Election Commission, so the
complaints have been filed time and again to the adjudicatory body. Many MPs including
Somanth Chatterjee, were being complained to Election Commission. Section 3 of Prevention of
Disqaulification Act, 1959, certain offices are not being covered under the category of
disqualification terming not under the office of profit, inspite of being member of any office if
the legislature has itself excluded the office from purview of office of profit. And taking the
benefit of this Parliament has excluded nearly 45 posts from the purview of Office of profit and
that too effective from retrospective in nature. Since the new act came in 2006 which was
excluding disqualification from 2006 was made applicable to 1959 act also.
In 2009, in the case of Consumer Education and Research Society V. Union of India,
decision of Supreme Court was the Parliament is bringing any legislature and deciding its
effectiveness and applicability retrospectively, and if the members who were being covered
under those purview gets automatically acquitted and being guilty of any of the charges. And
hence on the date on which case has been filed on that date none of the members stood
disqualified
Report of Joint Parliamentary Committee Report of 14 th Lok Sabha, has laid down following
guidelines:-

The office which is hold by the person is under the ambit of Control of Government of
India or Government of State , now the remuneration or salary of office is whether paide
or not out of public revenue

The office which is under the control of Government of India or Government of State
either fully controlling or owning partially and that salary or remuneration is being paid
by the Body

Office holder has capability to exercise the power which is in nature of executive and is
being delegated by either of the Government of India or of State, wherein the powers are
like land allotment, fund-dispensation, license granting, and the public appointments or
any favour which is in nature or power of legislature ,quasi- judicial or executive in
nature.

Article 103 lays down that any dispute about the disqualification of Member of Parliament shall
be referred to the President who will take a decision on the advice of the Election Commission
and his decision shall be final. The Election Commission has a great role, because President is
bound to act on the advice of Election Commission.
The dispute of disqualification of Member of Parliament, as in the post disqualification criteria,
needs to be referred to the President, who will be bound by the decision of Election Commission,
where the decision of Election Commission will be final. There exists the criteria of predisqualification also that if member is falling under the criteria of disqualification then the
election petition needs to be filed to the Election Commission.
In any case the deciding body is Election Commission, where they will decide the place and
position as to what person is holding upon the time and before and after of conduct of elections.
OFFICE OF PROFIT IN U.K
In U.K , the law pertaining to Office of Profit aspects of tug of war between the House of
Commons and Crown . The disqualifications related to Parliamentarians have been laid down in
the House of Commons Disqualifications Act, 1957 and that too which is being attached to any
particular office.

Basic broad reasons for disqualification:

1. The physical impossibility for certain office holders of attendance at Westminster;
2. The risk of patronage, and
3. The conflict of constitutional duties.
Disqualifying offices fall into six categories:
1. A great variety of judicial offices, listed in schedule 1 of the Act. (The principle is that no
person may hold full-time judicial office and be a practicing politician)
2. Employment in the civil service of the Crown, whether in an established or temporary
capacity, whole time or part time. The disqualification extends to members of the civil service of
Northern Ireland and the diplomatic service. Civil servants who wish to stand for election to
Parliament are required by civil service rules to resign before becoming candidates;
3. Membership of the regular armed forces of the Crown;
4. Membership of any police force maintained by a police authority, or the National Criminal
Intelligence Service, or the National Crime Squad;
5. Membership of the legislature of any country or territory outside
the Common-wealth, except the Republic of Ireland. It is likely that members of a legislature
other than that of the Irish Republic would be debarred by their status as aliens from membership
of the Commons;
6. A great variety of disqualifying offices arising from chairmanship or membership of
commissions, boards, administrative tribunals, public authorities and undertakings
In a few cases, the disqualification attaches only to particular constituencies. As these offices
cover such a wide range, each office is specified by name. The schedule may be amended by
Order in Council made following a resolution approved by the House of Commons. This power
obviates the need for amendment by statute as and when new offices are created.

There is no general theory of disqualification which exists for discarded the person from the
office of profit, as the office of profit to be hold under the seal and powers of Crown. The
disqualification exists only when the person holds the of profit and the office hence declared by
the Government as the office of profit and that too under Parliamentary Legislation. In India
there exists a general norm of disqualification for the aspects of disqualification under the
Constitution of India , but the Parliament only can grant specific exemptions . That is, in India it
will be presumed that if a person is holding any office which is of nature of office of profit then
he is presumed disqualified until and unless that office is being specifically exempted form that
purview.
CONCLUSION
The ultimate criteria to determine the nature of office will be the extent and control of
government on that particular office. The underlying objective to keep it under a provision of
office of disqualification for better functioning of all the organs of system, since the working of
government is so vast so it becomes difficult to create a line of segregation and duties discharged
by person in the capacity of legislative or executive nature, and since the Parliament has given
the power to exempt any office , and that too with retrospective effect, the usual practice remains
is the government in power exempts the office hold their party members to protect them from the
ambit of disqualification.